For personal use. Only reproduce with permission from The Lancet Publishing Group. Compulsory detention: limits of law On March 16, a man was convicted for the first time in the UK for intentionally infecting his partner with HIV. He was sentenced to a 5-year term of imprisonment. The prosecution was criticised by AIDS groups who suggested that it would not deter similar behaviour in the future, and could well lead to unwarranted complacency among people engaging in risky sexual behaviour. Elsewhere, criminal prosecution for actual or attempted HIV transmission has also been criticised for unfairly targeting racial and sexual minorities and for its potential to further marginalise people with HIV. Those opposed to the involvement of the criminal law have not necessarily considered the sometimes less transparent, though potentially equally draconian, activities of public health officialdom. In the now 20-year-old debate on HIV and human rights, some civil libertarians have preferred the use of criminal law to the application of public health powers. Criminal law commonly requires a public trial and procedural protections for an accused. These requirements are found less often in public health law. The power to isolate and detain carriers of infectious disease is a traditional feature of public health law. In many jurisdictions, the powers remain largely as they were more than a century ago, giving full decision-making authority to a public health bureaucrat. Some have argued that granting the authority to isolate carriers entails great risks to civil liberty. We suggest that protecting others from serious harm is a sufficient justification, in principle, for detaining an individual until the danger can be eliminated. Where a serious disease is still low in prevalence, or is approaching elimination, the case is even stronger because the benefits of preventing each case are quite high. In practice, the crucial issue is whether the conditions that would justify detention are actually present. Unfortunately, those who are detained under these laws are often at the social margin—the homeless, street workers, intravenous drug users, the mentally ill, and intellectually disabled. These populations have more exposure to disease, fewer resources for coping, and are more likely to be perceived as uncooperative. The focus of coercion on the poor and mentally ill also accounts for the fact that criminal and mental health laws have been used to achieve detention. It may be more convenient to prosecute a sex worker under criminal law and keep him or her out of circulation for a while than to initiate what may be a cumbersome public health process. This is particularly so because many jurisdictions have done away with their infectious disease hospitals, and sanatoria thus have no place to detain an individual. Criminal law may sometimes be used because neither public health nor mental health authorities want charge of a difficult individual, and so pass on the case to the police. Not surprisingly, HIV and tuberculosis have provided occasions to rethink the criteria and process for detention. Some jurisdictions have amended their laws to explicitly require that there is a significant risk to others involved—ie, a person cannot be detained at the discretion of an official solely because they are infected with a disease. These jurisdictions will often require graded responses to the risk posed. The least restrictive approaches must be used to deal with behavioural threats—for example, support in the community in preference to isolation and detention. The individual is provided with legal counsel and the right of review before a neutral judicial officer. Legal procedures that afford the detained individual an opportunity to present facts, and that are transparent to the public, are desirable developments. Although sometimes resented by health professionals, such systems can effectively harmonise human rights values and public health needs. But even in these jurisdictions, legal and public health systems may cooperate too well. The chief source of evidence to the court will be a physician or health official. Decisions will turn to medical determination of the risk to others. Judicial officers will usually defer to this evidence, and will often share the cultural biases of fellow professionals in assessing the risk posed by a person of significantly lower social status. Properly seen, the issue is not whether compulsory detention can be justified in theory, but whether it can be fairly deployed in practice. Where an HIV-positive homeless and mentally ill person comes to the attention of health officials and the courts there is the danger that the risks will be overstated, the recalcitrance of the individual exaggerated, and the range of less intrusive responses ignored. In these cases, the principle of protecting the many from the serious risks of the few is sound, but misapplied on the facts. Clear legal criteria and fair transparent procedures are vital for a just public health detention system. Equally necessary is continued awareness of the social distance between those most at risk of disease and those in charge of controlling it. *Bebe Loff, Scott Burris Department of Epidemiology and Preventive Medicine, Monash Medical School, Alfred Hospital, Victoria 3181, Australia (Bebe.Loff@Med.monash.edu.au) 146 THE LANCET • Vol 358 • July 14, 2001 HEALTH AND HUMAN RIGHTS or dance. These types of activities depend on identifying motivated leaders. In responding to HIV, we need to ensure that we respect people’s right to self-determination, confidential- ity, privacy, information, and non- discrimination. In these settings there are often calls for mandatory HIV testing. This needs to be resis- ted, not only because it is an ineffec- tive public health strategy, but also because it breaches these rights. Research and treatment also need to incorporate these principles. Because health care service providers who discriminate against people with HIV are potent generators of stigma in the community, so they need accurate information and antidis- crimination policies. Relief agencies that have been present during an emergency are in a good position to integrate HIV pre- vention and care efforts into their health, education, and social activi- ties when the situation becomes sta- ble. Agencies have recognised that their workers need guidance in priori- tising and implementing responses to HIV—for example, the International Rescue Committee is currently preparing a manual for their field staff. In addition, efforts to prevent conflict, and to resettle those dis- placed as soon as possible, are obvi- ously fundamental to addressing the vulnerability of refugees. 1 Bruderlein C, Leaning J. New challenges for humanitarian protection. BMJ 1999; 319: 430–35. 2 UNAIDS, Interparliamentary Union. Handbook for legislators on HIV/AIDS, Law and Human Rights. Geneva: UNAIDS, 1999. 3 Nduna S, Goodyear L. Pain too deep for tears. Assessing the prevalence of sexual and gender violence among Burundian refugees in Tanzania. New York: International Rescue Committee, 1997. 4 Khaw AJ, Salama P, Burkholder B, Dondero TJ. HIV risk and prevention in emergency-affected populations: a review. Disasters 2000; 24: 181–97. Wendy Holmes International Health Unit, Macfarlane Burnet Centre for Medical Research, Fairfield, Victoria 3078, Australia (holmes@burnet.edu.au)